Andrew David TOMS v. CALVARY ASSEMBLY OF GOD, INC., et al.
No. 26, Sept. Term, 2015.
Court of Appeals of Maryland.
Feb. 29, 2016.
132 A.3d 866
Sarah N. Koop (Law Office of Maher & Associates, Hunt Valley, MD), on brief, for respondents.
Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, MCDONALD, WATTS and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
GREENE, J.
In this case, we address whether noise emanating from the discharge of a fireworks display constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability.
Petitioner, Andrew David Toms (“Toms“), operates a dairy farm in Frederick County, Maryland, and maintains a herd of approximately 90 head of cattle. On September 9, 2012, a church-sponsored fireworks display took place on property adjacent to Toms’ dairy operation. A permit to discharge fireworks had been obtained, and the event was supervised by a deputy fire marshal. No misfires or malfunctions took place. According to Toms, the fireworks display was so loud that it startled his cattle, and caused a stampede inside his dairy barn. The stampede resulted in the death of four dairy cows, property damage, disposal costs, and lost milk revenue.
Toms filed suit against the respondents, collectively, Calvary Assembly of God, Inc. (“Calvary“), Zambelli Fireworks Manufacturing Co. (“Zambelli“), Zambelli employee Kristo
FACTUAL AND PROCEDURAL BACKGROUND
Toms operates a dairy farm on 69 acres of leased property near Walkersville, Frederick County, Maryland. The farm includes a barn and a herd of approximately ninety dairy cows. Auburn Farms, Inc., at the time of the incident, possessed the adjacent 40 acre property. Calvary sought and obtained permission from Auburn Farms, Inc. to use its property to host a fireworks display celebrating a church youth crusade.2 Calvary then hired Zambelli, a professional fireworks company, to handle the fireworks.
Pursuant to
The event was open to the public, and advertised in radio interviews, a newspaper ad, and on a banner located on Calvary‘s property on Route 194. Toms recalls seeing the banner, but states he had no notice of the event‘s time or location. On September 9, 2012, the day of the event, Mr. Lindberg accidently drove onto Toms’ farm, and Toms assisted him in locating the entrance to Auburn Farms, Inc. Mr. Lindberg testified that he identified himself and his purpose when speaking to Toms.5 The fireworks display took place at
At the time of the event, Toms’ cattle were inside the barn. Toms, however, arrived at the barn a few minutes after Mr. Lindberg began discharging fireworks. Toms states that the explosions startled his dairy cows, and caused them to stampede inside the barn. No witnesses, however, actually saw the stampede because no one was inside the barn with the cattle at the time the event started. The stampede, Toms states, resulted in the deaths of three cows shortly thereafter, and injuries to a fourth cow that ultimately led to its death, because it had to be “culled” from the herd a few weeks later.7 In addition to the loss of four dairy cows, Toms sustained property damage to fences and gates, disposal costs, and lost milk revenue. Toms sent a demand letter to Calvary outlining the damages, but Calvary and Zambelli denied liability.
On December 9, 2013, Toms filed suit in District Court against the respondents seeking damages of $13,148.20 under the theories of negligence, nuisance and strict liability for an abnormally dangerous activity. On May 2, 2014, a one-day
The respondents called several witnesses to testify. Deputy Fire Marshal Ruch testified that Calvary and Zambelli complied with applicable laws by applying for, and receiving, a permit to discharge fireworks. He also inspected and approved of the firing location. On the day of the event, Senior Deputy Fire Marshal Guderjohn supervised the fireworks show, and stated that Mr. Lindberg maintained a proper firing radius around the firing location, and that all shells were properly discharged without incident. Additionally, he stated that several fireworks displays had taken place within a mile of Toms’ location on previous occasions. Mr. Lindberg also testified, and stated that the fireworks were discharged from 550 to 600 feet from Toms’ barn.
The District Court entered judgment in favor of the respondents. It found that although Toms sustained damage, Toms did not establish any basis for liability for the injuries to his property, including livestock. The District Court determined that the fireworks display was a single event with no evidence that injuries or damages were sustained by direct contact with the discharged shells. No evidence established negligence on behalf of the respondents, because they had lawfully complied with statutory requirements by obtaining a permit, and the conditions of the permit were not violated. As to the issue of strict liability, the District Court found that the discharge of fireworks could be an abnormally dangerous activity, but that the danger is contained within the area allowed by the permit: here, a 300 foot firing radius. The District Court, however,
On May 29, 2014, pursuant to
We granted certiorari, Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515, 113 A.3d 624 (2015), to answer the following question:
Does the doctrine of strict liability for an abnormally dangerous activity apply to the noise of a fireworks discharge, based on the facts of this case?
STANDARD OF REVIEW
The question before this Court is whether discharging fireworks-specifically, the noise it produces-is abnormally dangerous, and thus, subject to strict liability. Whether an activity constitutes an abnormally dangerous activity is a question of law. RESTATEMENT (SECOND) OF TORTS § 520 cmt. l (AM. LAW INST. 1977) (stating that the function of the court is to decide whether an activity is abnormally dangerous by considering several factors and “the weight given to each that it merits upon the facts in evidence“). “As with all questions of law, we review this matter de novo.” State v. Johnson, 367 Md. 418, 424, 788 A.2d 628, 631 (2002). See also Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94, 109, 957 A.2d 628, 636 (2008).
For questions of fact for an action tried without a jury, we apply a clearly erroneous standard.
When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
“On appellate review, the Court of Appeals may set aside the judgment of the lower court based on the factual findings of the lower court only when those findings are clearly erroneous.” Helinski v. Harford Mem‘l Hosp., Inc., 376 Md. 606, 614, 831 A.2d 40, 45 (2003) (citing
DISCUSSION
Maryland has long recognized the doctrine of strict liability, which does not require a finding of fault in order to
The modern formulation of the strict liability doctrine is found in the Restatement (Second) of Torts §§ 519-520 (1977). This Court adopted that formulation in Yommer, while the Restatement (Second) of Torts was still in its tentative draft. 255 Md. at 223-24, 257 A.2d at 139. In Rosenblatt v. Exxon Co., U.S.A., we discussed the evolution of the doctrine: “Unlike the rule first enunciated in Rylands, this definition does not limit applicable activities to those causing an ‘escape’ of something onto the land of another; it requires only that there be harm to the person or property of another resulting from the abnormally dangerous activity.” 335 Md. 58, 70, 642 A.2d 180, 185 (1994).
Restatement (Second) of Torts § 519 defines strict liability for an abnormally dangerous activity:
One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.... This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
To determine whether an activity is abnormally dangerous, a court uses six factors. These factors are:
existence of a high degree of risk of some harm to the person, land or chattels of others; - likelihood that the harm that results from it will be great;
- inability to eliminate the risk by the exercise of reasonable care;
- extent to which the activity is not a matter of common usage;
- inappropriateness of the activity to the place where it is carried on; and
- extent to which its value to the community is outweighed by its dangerous attributes.
RESTATEMENT (SECOND) OF TORTS § 520 (AM. LAW INST. 1977). See Kelley v. R.G. Indus., Inc., 304 Md. 124, 132, 497 A.2d 1143, 1146 (1985) (“Whether an activity is ‘abnormally dangerous’ under these sections depends on its satisfying the following six factors, specified in § 520.“). As the Restatement (Second) of Torts reminds us:
Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
RESTATEMENT (SECOND) OF TORTS § 520 cmt. f (AM. LAW INST. 1977). The Reporter‘s Note for this section identifies typical abnormally dangerous activities, such as the storage of large quantities of water or explosives in dangerous locations, and conducting blasting operations in the middle of a city.
In Maryland, we weigh each factor independently. More emphasis is placed on the fifth factor: the appropriateness of the activity in relation to its location. Yommer, 255 Md. at 226, 257 A.2d at 140. “The thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.” Kelley, 304 Md. at 133, 497 A.2d at 1147. ”Yommer emphasized that the appropriateness of the
In Yommer, the owners of a gasoline station were held strictly liable for damages resulting from gasoline contamination of the well water of an adjacent residential property. 255 Md. at 227, 257 A.2d at 141. There, we applied the Restatement factors, and found the fifth factor to be the most persuasive factor:
No one would deny that gasoline stations as a rule do not present any particular danger to the community. However, when the operation of such activity involves the placing of a large tank adjacent to a well from which a family must draw its water for drinking, bathing and laundry, at least that aspect of the activity is inappropriate to the locale, even when equated to the value of the activity.
Yommer, 255 Md. at 225, 257 A.2d at 140. “We accept the test of appropriateness as the proper one: that the unusual, the excessive, the extravagant, the bizarre are likely to be non-natural uses which lead to strict liability.” Yommer, 255 Md. at 226, 257 A.2d at 141.
In applying the six factors, it is not necessary to have all six factors weigh in favor of a particular party. “Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.” RESTATEMENT (SECOND) OF TORTS § 520 cmt. f (AM. LAW INST. 1977).
Though the doctrine of strict liability has evolved since the rule in Rylands was first announced,10 the policy concerns in
We have taken care to limit the application of this doctrine because of the heavy burden it places upon a user of land. Our cases have limited the class of abnormally dangerous activities to those activities which would be abnormally dangerous in relation to the area where they occur. Moreover, we have limited the doctrine with regard to the class of actors to which it applies: we have required that the one engaging in the relevant activity have ownership or control over the land.... And, finally, we have required that the act have a relation to the occupation or ownership of land.
335 Md. at 73-74, 642 A.2d at 187 (internal citations omitted). In Kelley, we refused to apply the doctrine in a case involving a minor‘s death caused by the firing of a handgun. 304 Md. at 133, 497 A.2d at 1147. “The dangers inherent in the use of a handgun in the commission of a crime ... bear no relation to any occupation or ownership of land. Therefore, the abnormally dangerous activity doctrine does not apply to the manufacture or marketing of handguns.” Id.
After applying the Restatement‘s multi-factor test, in Kirby v. Hylton, the Court of Special Appeals declined to expand the strict liability doctrine where a minor was fatally injured after playing with, and being run over by, a heavy pipe. 51 Md.App. 365, 375, 443 A.2d 640, 645-46 (1982). The intermediate appellate court stated:
We find that we need not address the issues of escape and intervention because we do not think that the storage of a pipe in the instant case is an abnormally dangerous activity
according to the criteria set forth in § 520 of the tentative draft and quoted in Yommer .... Because the activity did not entail an unreasonable risk of harm, the appellants must show negligence in order to recover and cannot rely on the doctrine of strict liability.
Kirby, 51 Md.App. at 375-76, 443 A.2d at 645-46.
In Gallagher v. H.V. Pierhomes, LLC, the Court of Special Appeals held that pile driving was not an abnormally dangerous activity. 182 Md.App. 94, 113, 957 A.2d 628, 639 (2008). There, pile driving operations at the Inner Harbor in Baltimore City caused minor damage in a 200 year old residence located 325 feet away from the construction site. Gallagher, 182 Md.App. at 110, 957 A.2d at 637. The intermediate appellate court found that the defendants had acted appropriately in obtaining the proper permits, conducting geotechnical studies, and carefully monitoring the vibrations produced by the pile driving operations. “[T]here was only a single recorded vibration that exceeded the limits.” Gallagher, 182 Md.App. at 99-100, 957 A.2d at 631. The court concluded that the risk of harm produced by pile driving operations “is not a high degree of risk which requires the application of strict liability” because that risk can be eliminated “through the exercise of ordinary care.” Gallagher, 182 Md.App. at 110, 957 A.2d at 637-38.
Jurisdictional Split on Strict Liability and Fireworks
Whether fireworks discharge constitutes an abnormally dangerous activity is a case of first impression in Maryland, because fireworks liability normally arises in the context of nuisance and negligence litigation.11 Some jurisdictions, how-
The highest appellate court in Washington, for instance, held pyrotechnicians strictly liable when a shell exploded improperly and injured spectators at a public fireworks show. Klein v. Pyrodyne Corp., 117 Wash.2d 1, 810 P.2d 917, amended by 117 Wash.2d 1, 817 P.2d 1359 (1991). It stated that Restatement factors (a) through (d) weighed in favor of imposing strict liability, because discharging fireworks creates a “high risk of serious bodily injury or property damage” due to the possibility of a malfunction or similar issue. Klein, 810 P.2d at 922. “The dangerousness ... is evidenced by the elaborate scheme of administrative regulations with which pyrotechnicians must comply[,]” including licensing and insurance requirements. Id. at 920. Under factor (d), it further determined that discharging fireworks was not a matter of common usage, because the licensing scheme restricts the general public from engaging in that activity. Id. at 921. In addition to the high risk discharging fireworks creates, that court determined that public policy and fairness warranted strict liability. Id. at 922. Otherwise, the injured spectators would have been subject to the “problem of proof” because “all evidence was destroyed as to what caused the misfire of the shell that injured the Kleins.” Id.
Arizona‘s intermediate appellate court was persuaded by the rationale in Klein in a case involving a misfire at a mall-sponsored fireworks display. Miller v. Westcor Ltd. P‘ship, 171 Ariz. 387, 831 P.2d 386, 392 (Ct.App.1991). Although the issue was in the context of negligence liability under § 427 of the Restatement (Second) of Torts, like Klein, it found that the risk of malfunction or misfire could not be entirely eliminated, and that the “legislature has also recognized the dan
Other jurisdictions, however, have come to the opposite conclusion, and have held that the level of risk involved with a fireworks discharge does not warrant strict liability. In Haddon v. Lotito, Pennsylvania‘s highest appellate court applied the ultrahazardous activity test, and determined that strict liability-referred to as absolute liability-did not apply in a case involving spectator injuries at a public fireworks display. 399 Pa. 521, 161 A.2d 160, 162 (1960). Critically, that court distinguished lawful from unlawful fireworks displays:
[A] public fireworks display, handled by a competent operator in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous an activity.... Where one discharges fireworks illegally or in such a manner as to amount to a nuisance and causes injury to another, some jurisdictions have held that liability follows without more. But the production of a public fireworks display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence.
Id. (internal citations omitted). Other courts have ruled similarly. In Litzmann v. Humboldt Cty., California‘s intermediate appellate court determined that “the handling and discharge of fireworks ... were not such as to come within the definition of ultrahazardous activities.” 273 P.2d 82, 88 (Cal. Dist.Ct.App.1954). In that case, an undischarged firework was negligently discarded on fairgrounds, and a minor was severely injured when he found and ignited it. After applying the Restatement factors, that court declined to impose strict liability, because “[i]t was the failure of care that caused the injuries and not the nature of the risks involved.” Litzmann, 273 P.2d at 88.
[T]hese risks could be eliminated by a degree of care far within the bounds of ‘utmost care‘.... [B]y the method of firing adopted[,] it was a reasonably easy matter to direct the firing so that injury would not arise through misdirection of the missiles; and that observation by those skilled enough to be licensed to explode fireworks was adequate to detect the lack of explosion of the material shot into the air. It appears, therefore, that the activities engaged in and charged to be ultrahazardous were in fact risks which could be and would be eliminated if commensurate care had been exercised.
Id.
In Cadena v. Chicago Fireworks Mfg. Co., the Illinois intermediate appellate court stated that only Restatement factors (a), which focuses on the existence of a high degree of risk of some harm, and (b), which concerns the likelihood that the harm that results will be great, weighed in favor of strict liability. 297 Ill.App.3d 945, 232 Ill.Dec. 60, 697 N.E.2d 802, 814 (1998) overruled on other grounds by Ries v. City of Chicago, 242 Ill.2d 205, 351 Ill.Dec. 135, 950 N.E.2d 631 (2011). Notably, that court reminded readers that factor (c) “does not require the reduction of all risk” and that “the exercise of reasonable care in displaying fireworks will significantly reduce the risks involved [in a fireworks display].” Cadena, 232 Ill.Dec. 60, 697 N.E.2d at 814 (emphasis in original). Unlike other courts, it interpreted factor (d) broadly and found that “fireworks displays are a matter of common usage” because “many individuals view them and many municipalities display fireworks....” Id. (emphasis in original).
Fireworks Liability in Maryland
In the instant case, Toms asks this Court to expand the strict liability doctrine and hold that noise emanating from a fireworks discharge is abnormally dangerous to livestock.12 The Restatement factors we consider are:
existence of a high degree of risk of some harm to the person, land or chattels of others; - likelihood that the harm that results from it will be great;
- inability to eliminate the risk by the exercise of reasonable care;
- extent to which the activity is not a matter of common usage;
- inappropriateness of the activity to the place where it is carried on; and
- extent to which its value to the community is outweighed by its dangerous attributes.
RESTATEMENT (SECOND) OF TORTS § 520 (AM. LAW INST. 1977).
Toms argues that the facts of the case are sufficient to show that each factor weighs in favor of imposing strict liability. He maintains that the resulting sudden loud explosions, for example, involve a high risk of harm that can trigger a startle reflex in dairy cows, which are known to be large, clumsy animals. That startle reflex may cause, as Toms alleges happened here, the cows to stampede and cause injuries to themselves as well as to property. Under factor (c), Toms posits that there is no way to eliminate this risk other than by choosing an alternative location to host the fireworks display. He also argues that the risk can be mitigated with advanced notice to the owner of the dairy cows of the fireworks display. For instance, Toms states that he was never given specific or general notice aside from a banner on Calvary‘s property advertising the event. With advanced notice, Toms contends he could have mitigated the risks by moving the cows from the barn to an outdoor enclosure. Toms further argues that factor (d) weighs in his favor, because although “fireworks displays at public parks, ballparks, and the like, are common, exploding fireworks adjacent to an active dairy farm is not.” Additionally, under factor (e), discharging fireworks 300 to 500
For support, Toms cites to Toy v. Atl. Gulf & Pac. Co., and its discussion of liability without fault when an “occupier was not using the land in the common and natural way, and had artificially produced the potential danger....” 176 Md. 197, 213, 4 A.2d 757, 765 (1939). Toms states that the property of Auburn Farms, Inc. was not being used in the “common and natural way” because it was hosting a one-time event. Toms further argues that under factor (f), a local church activity provides little benefit to the community, and does not outweigh the risks associated with the fireworks display to the adjacent dairy farm operation. Lastly, in addition to the Restatement factors, Toms highlights important policy considerations. “Because of population growth in Maryland, the interaction [between] farmers and development is a continuing issue.... Expanding Maryland case law to provide protection for farmers against damages from such abnormal intrusion would meet a social need.” Toms argues that he sustained a preventable injury, and if the court does not impose strict liability, it shall remain an injury without remedy.
The respondents contend that the lower courts were correct in determining that, based on the facts of this case, strict liability is inapplicable, because evidence is insufficient to support Toms’ claim that the noise produced by the fireworks discharge is abnormally dangerous to livestock. As support, the respondents cite to
In applying the clearly erroneous standard as it applies to questions of fact, we are satisfied with the evidentiary findings made by the District Court. There was sufficient evidence in the record to support those findings. Therefore, we need only review de novo the question of law for the issue of whether strict liability for an abnormally dangerous activity should be imposed on a lawful fireworks display.
Maryland defines fireworks as “combustible, implosive or explosive compositions, substances, combinations of substances, or articles that are prepared to produce a visible or audible effect by combustion, explosion, implosion, deflagration, or detonation.”
(a) existence of a high degree of risk of some harm to the person, land or chattels of others. Special events requiring the use of large, professional “display fireworks” are heavily regulated in Maryland pursuant to
(a) In general.-Subject to subsections (b) and (c) of this section, the State Fire Marshal may issue a permit to authorize the discharge of fireworks in a place where the discharge of fireworks is legal.
(b) Findings required by State Fire Marshal.-The State Fire Marshal shall issue a permit to discharge fireworks only if the State Fire Marshal determines that the proposed discharge of fireworks will:
- not endanger health or safety or damage property; and
- be supervised by an experienced and qualified person who has previously secured written authority from the State Fire Marshal to discharge fireworks.
In order to obtain a permit, an individual must submit an “Application for Public Fireworks Display” to the State Fire Marshal. The application requires, among other things, event
We hold that a lawful fireworks display does not pose a high degree of risk, because the statutory scheme in place is designed to significantly reduce the risks associated with fireworks, namely mishandling, misfires, and malfunctions. Furthermore, the required firing radius of 250 feet was voluntarily extended by Mr. Lindberg to 300 feet. Critically, in enacting the Public Safety Article, the General Assembly did not regulate the audible effects of display fireworks, which indicates that any risk associated with the decibel level of a fireworks discharge is minimal or non-existent.
Lawful fireworks displays do not pose a significant risk because “[a] person who possesses or discharges fireworks in violation” of the permitting process “is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $250 for each offense.”
(b) likelihood that the harm that results from it will be great. This factor also weighs in favor of not imposing strict liability, because the purpose of a 300 foot perimeter surrounding the firing location is to mitigate the likelihood of harm. The instructions sheet attached to the “Application for Public Fireworks Display” states, in pertinent part:
If other properties are in the fall out zone of the fireworks, a letter must be attached from the property owner or representative of the property owner stating that they give
permission for their property to be used in the fall out zone. If any structures are within the fall out zone, the owner of the structure must provide documentation that the structure will not be occupied during the fireworks display. All structures within the fall out zone shall be deemed as being unimportant.
The statutory scheme regulating the use of fireworks is specifically designed to reduce risk. “The harm threatened must be major in degree, and sufficiently serious in its possible consequences to justify holding the defendant strictly responsible for subjecting others to an unusual risk. It is not enough that there is a recognizable risk of some relatively slight harm....” RESTATEMENT (SECOND) OF TORTS § 520 cmt. g (AM. LAW INST. 1977). See also Gallagher, 182 Md.App. at 110, 957 A.2d at 637 (“Under section 520(b), a plaintiff must show that the defendants’ pile driving was likely to produce significant harm, not simply that she suffered some harm as a result of the pile driving activity.“). Because Toms’ dairy barn, and therefore his cows, were not located within the fall out zone, the likelihood of harm to the public and property was significantly reduced. The 300 foot firing radius was effective because no shells fired that night malfunctioned, and no debris littered Toms’ property.
(c) inability to eliminate the risk by the exercise of reasonable care. We are reminded that:
It is not necessary, for the factor stated in Clause (c) to apply, that the risk be one that no conceivable precautions or care could eliminate. What is referred to here is the unavoidable risk remaining in the activity, even though the actor has taken all reasonable precautions in advance and has exercised all reasonable care in his operation, so that he is not negligent.
RESTATEMENT (SECOND) OF TORTS § 520 cmt. h (AM. LAW INST. 1977). We disagree with Toms that reasonable care cannot reduce the risk of harm to livestock to acceptable levels. In enacting
The 300 foot firing radius is sufficient. Furthermore, notice to Toms was not necessary, because his dairy barn was located beyond the firing radius. In our view, the Restatement does not require the elimination of all risk, and because the risks inherent with a fireworks discharge can be reduced to acceptable levels, this factor does not support a conclusion of an abnormally dangerous activity.
(d) extent to which the activity is not a matter of common usage. “An activity is a matter of common usage if it is customarily carried on by the great mass of mankind, or by many people in the community.” Yommer, 255 Md. at 225 n. 2, 257 A.2d at 140 (citation omitted). We recognize that the discharging of lawful fireworks displays is a matter of common usage. In a letter dated July 3, 1776, John Adams wrote about the pomp and circumstance that should surround the
(e) inappropriateness of the activity to the place where it is carried on. When this Court adopted the Restatement (Second) of Torts’ multi-factor test for abnormally dangerous activities, this particular factor was identified as being the most crucial. Yommer, 255 Md. at 225, 257 A.2d at 140. “The thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.” Kelley, 304 Md. at 133, 497 A.2d at 1147. Implicit in the granting of a permit to discharge fireworks, is the lawfulness of that pro-
(f) extent to which its value to the community is outweighed by its dangerous attributes. Here, a church-sponsored fireworks display celebrated a youth crusade, and the event was open to the public. As a symbol of celebration, fireworks play an important role in our society, and are often met with much fanfare. The statutory scheme regulating its use minimizes the risk of accidents, thus, reinforcing the popularity of these displays. This Court recognizes that not all segments of the population may enjoy fireworks displays, especially those with noise sensitivities, however, we conclude
Policy considerations. We are mindful that the doctrine of strict liability for abnormally dangerous activities is narrowly applied in order to avoid imposing “grievous burdens” on landowners and occupiers of land. Toy, 176 Md. at 213, 4 A.2d at 765. Toms argues that we should expand the factual application of this doctrine, however, the Restatement factors do not support such a position. The use of fireworks, especially in public fireworks displays, is heavily regulated pursuant to
At issue in this case is a lawful fireworks display that was implemented pursuant to the requirements of the Public Safety Article. At trial, Toms did not present any evidence concerning what noise levels should be appropriate for public fireworks display. Sufficient evidence was not presented to the trier of fact that a lawful fireworks display was abnormally dangerous to livestock. Thus, as a matter of law and on a case-by-case basis, we do not extend the doctrine of strict liability for abnormally dangerous activities under the circumstances.
CONCLUSION
Accordingly, we affirm the judgment of the Circuit Court. Lawful fireworks displays are not an abnormally dangerous activity, because the statutory scheme regulating the use of
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. PETITIONER TO PAY THE COSTS.
HARRELL, J., joins in judgment only.